Borman v Griffith

Implication by way of contract is argued in a case involving the conflict of interests between two tenants and a perhaps disorganised and rushed grant of occupancy by the landlord.

In a time immediately before the Law of Property Act 1925 a landowner sought to let out a part of his estate for a determined period. Under the terms of the lease there was at the time, a gravelled road that passed by the tenant’s rented property named ‘The Gardens’ while leading to the door of the main estate property named ‘The Hall’.

At the time the tenant began his residence there was also an unfinished bridleway that allowed for access to the rear of the Gardens, albeit given no mention within the contract nor any reliable evidence that use of the drive had been orally agreed between the two parties. During this period and short after taking occupancy of the Gardens, the Hall was leased to another occupier with no issues arising between them.

A few years afterwards this same tenant vacated the Hall and so the landowner let it out to another party for a fixed period, after which the occupier of the Gardens continued to use the gravelled drive as a means of access to the front of his property, as he had since his lease began. Two years after taking up residency the defendant in this case erected a wire fence to prevent the claimant and tenant of the Gardens from using the gravelled drive as a means of access, hence resulting in litigation.

Relying upon the wording of s.62(1) of the Law of Property Act and the fact that there had never been any other suitable means of access to his home, the claimant argued that an easement by way of implication had been granted by the landlord. When considered by the court the facts determined that there was a clear difference between the granting of a lease and the conveyance of interest in land or property; and which in this instance the former applied.

There was however, the principle that under the terms of the contract there could be argued, an obligation to undertake full performance of the rights bestowed the claimant, where unless the contract provides specific exclusion of a right of way between two sharing tenants, the gravelled drive afforded both users equal powers to enforce their rights. It was on these grounds that the judge endorsed the action and awarded accordingly.

Key Citations

“…the definition of “conveyance” in the Conveyancing Act, 1881, is limited to documents made by deed, and the contract in the present case is not by deed.”

“…a lease for any term of more than three years must be by deed, and it is well known that, under s. 3 of the Real Property Act, 1845,”…a lease, required by law to be in writing, of any tenements or hereditaments…. shall…be void at law unless made by deed.””

“…where, as in the present case, two properties belonging to a single owner and about to be granted are separated by a common road, or where a plainly visible road exists over the one for the apparent use of the other, and that road is necessary for the reasonable enjoyment of the property, a right to use the road will pass with the quasi-dominant tenement, unless by the terms of the contract that right is excluded…”

“…a grantor of property, in circumstances where an obvious, i.e., visible and made road is necessary for the reasonable enjoyment of the property by the grantee, must be taken prima facie to have intended to grant a right to use it.”